William Bailey, President of the State Bank of Florida Appellant, vs. The South Western Railroad Bank, 11 Fla. 266

BAKER., J., delivered the opinion of tbp court. This suit was commenced by attachment, issued from the Circuit Court of Leon county, in favor of William Bailey, President of the State Bank of Florida, against the South Western Railroad Bank, upen a draft drawn by James II. Bull, Agent of the South Western Railroad Bank, and set forth in plaintiff’s declaration, as follows: Agency of the South Westeeh R. E. Bajnk, ) Taluahassee, May 6th, 1862. j No. 482. Cashier of the South Western Railroad Bank, Charleston, pay to the order of H. L. Hart, eight hundred and fifty currency dollars, ($850). Signed, J.

II, BULL, Agent. Endorsed II, L. Hart, P. B. Brokaw. The plaintiff, as holder and endorser of said draft, on the 17th day of September, 1866, caused the same to be presented at the Bank, in Charleston, for payment, which was refused, and the draft regularly protested. This suit is instituted against the Bank as drawer and not as drawee of the bill. It is charged in the declaration that the defendant, by its agent J. II. Bull, made its certain bill of exchange, and directed the said hill of exchange to the cashier of the South Western Railroad Bank, being the same Bank of which the said J. II. Bull was agent.

The defendant appears by counsel, takes no exception to the manner of commencing the suit, or to the plaintiff’s declaration, and for defence, files following pleas: 1st. General issue. 2d. Two special pleas setting forth laches on the part of the plaintiff in not presenting the check for payment within a reasonable time. An agreement of counsel was also filed to the effect that the bank agent, having received Confederate Notes for said draft, the party in whose favor it was drawn wras to receive like funds in payment.

The court, upon consideration of the case, rendered a judgment for the defendant, from which judgment the plaintiff appealed to this court. The plaintiff’s counsel filed the following assignment of errors, to-wit: 1st. The court erred in holding upon the case submitted, that a demand by the holder upon the drawee, at the place at which the draft was payable anterior to the 13th day of September, 1866, was necessary to bind the defendant as drawer. 2d. That the court erred in holding that demand of payment of the draft in suit at an earlier day was necessary to entitle plaintiff to recover. 3d.

That the court erred in giving judgment for the defendant. The only point presented by the assignment of errors is, whether the plaintiff was barred-from recovery in this suit on account of the delay in making a demand on the drawee and giving notice of non-payment. It is urged by the counsel for the defendant that the drawee owes no duty to the holder until he accepts the draft; neither can the holder resort to tiro drawer until he has used due diligence to obtain payment from the drawee.

As a general proposition of law, there can be no doubt of the correctness of this position, nor of the weight of the numerous authorities quoted in its support, when applied to the ordinary cases arising under the law regulating demand and notice. There being no difference of opinion in relation to these general principles, they need not be discussed here.

We are only required to determine how far they apply to this particular case, and whether there rvas anything in the relations existing at the date of this draft, between the drawer and drawee, that would relieve the holder from the binding obligations of these well-settled rules of law. If a suit had been brought against the agent Bull as drawer of this bill, the plea oí laches would have been a good defence. He certainly would have been entitled to notice, to enable him to protect himself from loss while he was in possession of the funds of the bank. The case oi Pitts vs.

Jones, 9 Florida Reports, so forcibly urged by the counsel for appellee, would be conclusive authority to sustain his defence, though it does not seem applicable to tiro case before us. The plaintiff, however, sets up no claim against the agent, and relies upon the suit against the bank as drawer of the draft. The record show's that J. II.

Bull was the authorized agent of the South Western Railroad Bank, doing business in Tallahassee; that in the regular discharge of his duties as such, he made this draft, and signed it as agent; and it is not denied that the act was at the time as binding as if it had been the act of the principal. An individual may draw a bill of exchange by an agent, and it will be as binding upon him as if drawn by his own hand. 10 Wendell, 275.

And it is now a firmly established rule of law, that eor-porations may bind themselves as drawers, endorsers or acceptors of bills of exchange through the instrumentality of agents, or become parties to any other negotiable paper, if within the proper scope of the objects and purposes of their charter. Story on" Bills, § 79. The agent who made this draft was clearly using the appropriate means to accomplish the objects and purposes for which the bank was chartered, and for which the agency was established at Tallahassee.

The draft seems to have been properly signed, and was drawn within the scope of the agent’s authority on the cashier of the Bank at Charleston. The consideration for which it was given was paid to the agent, and went to the credit and use of the bank. Neither the agent nor the cashier appears to have any interest in the matter, except in the honest discharge of the trust confided in them; both representing one party and one common interest. Notice is generally required, so that all parties to the bill of exchange may have time to protect their interests and prevent loss. Mr.

Chitty says: “ The reason why the law in general requires the holder to give due notice of nonacceptance by the drawee is, that the drawer may forthwith withdraw from the possession of the drawee such effects as he may already have, or may stop those which he is in course of receiving, and that the drawrnr and endorsers may respectively take the necessary measures to obtain payment from the parties respectively liable to them.” Chitty on Bills, 355. In all cases where the spirit and reason of this law applies, it must be strictly complied with.

In this case, however, it is claimed that the drawer and drawee are the same; if so, the application of the law would involve on absurdity. It cannot be supposed that the agency at Tallahassee would be liable to suffer loss on account of the misapplication of its funds by the bank, or that the agency could withdraw funds from the bank, or “ stop any it might be in course of receiving.” In absence of all authority upon this question, we would have little difficulty in arriving at a satisfactory conclusion upon the application of general principles; but we are not without authority to sustain our position.

It has frequently been decided that notice is not necessary even in cases where the drawer and drawee are not identical, but where they stand in some business relations towards each other that raises the presumption of notice. “ Where a bill is drawn by several persons upon one of themselves, since the acceptor is likewise the drawer, notice of dishonor is superfluous, as dishonor must be known to one of them, and the knowledge of one is the knowledge of all.” Byles on Bills, 366.

In the Supreme Court of the State of Hew York,.it has been held that if the drawer of a bill be a partner in a firm on which the bill is drawn, the holder need not give notice of the dishonor by non-acceptance of the bill by the firm, for as the firm must have notice thereof, that is notice to himself. 20 John., 116. Even where there is no interest in common between the drawer and drawee, when the drawer makes a bill payable at his own house, notice of dishonor is unnecessary. Byles on Bills, 364. Tlief rule of law given in the cases above stated applies with greater force to the case now under consideration.

The drawer and drawee being one, the responsibility cannot be divided. The bank received the consideration, and its draft in the hands of the holder is simply an evidence of indebtedness. In legal contemplation, such draft is regarded as a promissory note, payable on demand, and the maker thereof not entitled to notice. 1st Manning & Hyland, 120; Koscoe on Bills, 20, 40.

The law in all eases of this sort deems the draft to admit a present debt to be due to the payee or holder, and payable absolutely, and at all events, whenever presented for payment according, to its purport, and no other demand need be made-, except by bringing suit thereon. Story on Promissory Notes, § 29. The agreement filed by counsel in this case shows, that the consideration given for the draft was Confederate Treasury Notes. The assessment of damages should, therefore, be made in accordance with the provisions of the ordinance of the Convention, adopted Nov. 7, 1865.

It is ordered that the judgment be reversed, and the cause remanded for new trial.